Second Periodic Review of the Commission's Rules and Policies Affecting the Conversion To Digital Television, 26554-26560 [07-2318]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 72, Number 90 (Thursday, May 10, 2007)]
[Rules and Regulations]
[Pages 26554-26560]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-2318]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 15

[MB Docket No. 03-15; RM-9832; FCC 07-69]


Second Periodic Review of the Commission's Rules and Policies 
Affecting the Conversion To Digital Television

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts rules requiring 
sellers of analog-only TV equipment to label or post signs at point of 
sale disclosing limitations after the February 17, 2009 deadline for 
the transition from analog to digital television service. The 
Commission states that sellers must advise consumers at point of sale 
if the television equipment includes only an analog tuner that will 
require a converter box to receive over-the-air-broadcast-television 
after the deadline.

DATES: The rules in 47 CFR 15.117(k) contains information collection 
requirements that have not been approved by the Office of Management 
and Budget (OMB). The FCC will publish a document announcing the 
effective date.

ADDRESSES: You may submit comments, identified by MB Docket No. 03-15, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For additional information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Eloise Gore, Eloise.Gore@fcc.gov of 
the Media Bureau, Policy Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order (Order), FCC 07-69, adopted on, April 25, 2007, and 
released on May 3, 2007. The full text of this document is available 
for public inspection and copying during regular business hours in the 
FCC Reference Center, Federal Communications Commission, 445 12th 
Street, SW., CY-A257, Washington, DC 20554. These documents will also 
be available via ECFS (https://www.fcc.gov/cgb/ecfs/). (Documents will 
be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) 
The complete text may be purchased from the Commission's copy 
contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. 
To request this document in accessible formats (computer diskettes, 
large print, audio recording, and Braille), send an e-mail to 
fcc504@fcc.gov or call the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

    This document contains new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB) 
for review under Section 3507(d) of the PRA. OMB, the general public, 
and other Federal agencies will be invited to comment on the new 
information collection requirements contained in this proceeding. The 
Commission will publish a separate document in the Federal Register at 
a later date seeking these comments. In addition, we note that pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how 
the Commission might ``further reduce the information collection burden 
for small business concerns with fewer than 25 employees.''

Summary of the Report and Order

I. Introduction

    1. In this Second Report and Order in the Second DTV Periodic 
Review, we take up the issue of labeling of television receiving 
equipment, which was raised in the Second DTV Periodic NPRM, 68 FR 
7737-01. This Order applies to televisions, television receivers, and 
other television receiving equipment, which includes television

[[Page 26555]]

sets and other video devices, such as video-cassette recorders and 
digital video recorders, that are covered by the Commission's digital 
television reception capability implementation schedule. In light of 
the fixed deadline--February 17, 2009--established for the end of 
analog television broadcasting, we now conclude that it is necessary 
and appropriate to require retailers to provide consumers with 
information regarding this transition date at the point of sale. 
Specifically, we will require sellers of television receiving equipment 
that does not include a digital tuner to disclose at the point-of-sale 
that such devices include only an analog tuner and therefore will 
require a converter box to receive over-the-air broadcast television 
after February 17, 2009. Consumers expect that equipment for sale today 
that is capable of receiving ``television'' is and will continue to be 
able to receive over-the-air broadcast signals, and, if not, then such 
material information should be disclosed prior to purchase. The 
successful completion of the digital television (``DTV'') transition 
depends upon satisfaction of this basic consumer expectation. For these 
reasons, in this Order we adopt disclosure requirements to ensure that 
consumers receive this important information regarding the limitations 
of analog-only television receivers at the point of sale.

II. Background

    2. The Second DTV Periodic NPRM asked whether we should require a 
mandatory label on analog-only sets to inform consumers at the point of 
sale that a converter or external DTV tuner will be needed to ensure 
reception of television broadcast signals after stations complete the 
conversion to digital-only broadcasting. In the First Report and Order 
in the Second DTV Periodic Review, we deferred determination of the 
need to require labeling to this Second Report and Order. With the 
establishment by Congress of a hard and certain deadline for the end of 
analog transmissions by full power television stations, we now conclude 
that it is necessary to ensure that consumers are aware at the point of 
purchase of that deadline and the impact that it will have on analog-
only television receivers.

Second DTV Periodic Review

    3. The Second DTV Periodic NPRM invited comment on the need for a 
point of sale disclosure label on analog-only devices or a digital 
transition fact sheet to inform consumers that a converter or external 
DTV tuner will be needed to ensure reception of television broadcast 
signals after stations complete conversion to digital-only 
broadcasting. The NPRM also asked about plans to manufacture ``pure 
monitors'' (without any tuner) that can receive digital format 
transmissions via cable or satellite but not from signals broadcast 
over-the-air and requested information on the plans to label such 
monitors to describe reception limitations.
    4. When the Commission issued the NPRM for the Second DTV Periodic 
Review in 2003, concerns about consumer understanding had been 
heightened by a General Accounting Office (``GAO'') Report to Congress 
in November 2002 that found that at least 40 percent of the public was 
unfamiliar with the digital transition. This 2002 GAO Report also found 
that 68 percent of those surveyed did not know that when the transition 
ends, consumers with analog-only devices will be unable to continue 
receiving over-the-air broadcast television without use of an external 
digital tuner or converter. Only 14 percent of those surveyed by the 
GAO were ``very familiar'' with the difference between analog and 
digital televisions. GAO speculates that even this number may be high 
because consumers may be confusing current digital television services 
provided by cable or satellite with DTV. Over 80 percent of consumers 
were unaware or only somewhat aware of the ongoing transition to 
digital television. In addition, it concluded that retail sales 
personnel often provide inaccurate information about both digital 
programming availability and equipment needed to receive and display 
digital programming, particularly over-the-air. Another study in 2003 
found that 25 percent of Americans thought they owned a high definition 
television set, while HDTV sales showed that only a small fraction of 
these consumers could possibly have been correct in their understanding 
of the capabilities of their televisions.
    5. This concern has not been diminished by more recent findings. A 
study in June 2004 reported that 37 percent of adults were at least 
somewhat familiar with HDTV and 87 percent expressed vague awareness 
but lacked clear understanding. In addition, a more recent GAO study in 
2005 noted that consumers are still confused about the transition. This 
2005 GAO study reported that consumers may be reluctant to buy digital 
equipment, which is generally more expensive than analog-only devices, 
because they lack accurate knowledge about the transition and believe 
they will always have a choice between analog and digital signals over-
the-air. Moreover, a very recent survey by the Association of Public 
Television Stations (``APTS'') found that 61 percent of those surveyed 
said that they had ``No Idea'' that the DTV transition was taking 
place, 10 percent said they had ``Limited Awareness,'' while 17 percent 
said they were ``Somewhat Aware'' and less than 8 percent said they 
were ``Very Much Aware.'' The results from that survey also indicate 
that awareness of the forthcoming transition--even after enactment of a 
statutory deadline--remains low. The need for labeling of analog-only 
televisions also has been mentioned in Congressional hearings, both in 
testimony and from members on both sides of the aisle. For example, on 
February 17, 2005, the House Subcommittee on Telecommunications and the 
Internet held a hearing on ``The Role of Technology In Achieving A Hard 
Deadline for the DTV Transition.'' Rep. Bobby Rush (D-IL) and K. James 
Yager, CEO, Barrington Broadcasting, testifying on behalf of the NAB 
and MSTV, expressed belief in requiring warning labels on analog-only 
sets to alert consumers to the limited useful life of their television 
sets. Both House and Senate Committees have proposed legislation to 
require labeling of analog-only televisions to address these concerns.
    6. In the Second DTV Periodic NPRM, most parties who commented on 
labeling supported the need for Commission action to address consumer 
expectations, particularly with regard to analog-only television 
equipment. MSTV and NAB were concerned that a label describing a 
receiver's functionality may not go far enough to adequately notify 
consumers of the transition from analog to digital service. NBC and 
Telemundo expressed concern that consumers will waste money buying 
equipment that will soon be obsolete and proposed a labeling 
requirement to notify consumers that after the transition, analog 
equipment will not deliver television signals without a converter. By 
contrast, parties opposing any labeling requirement contended that 
marketplace incentives will ensure that consumers are well-informed, 
and that there is no evidence that manufacturers would not inform 
consumers of product limitations. The Consumer Electronics Association 
(``CEA'') offered to consider voluntary labeling if manufacturers 
determined there is consumer confusion. The Consumer Electronics 
Retailers Council (``CERC'') expressed concern that labels describing 
what equipment does not do will be harmful and interfere with

[[Page 26556]]

merchandising efforts. CERC contended that negative formulations are 
misleading because there is inadequate room to list all the positive 
formulations on a label.

DTV Tuner Orders

    7. In 2002, the Commission adopted a schedule for the phase-in of 
television receivers to be equipped with digital tuners. The DTV Tuner 
Order initially required that all TV receivers with screen sizes 
greater than 13 inches manufactured in the United States or shipped in 
interstate commerce after July 1, 2007 be capable of receiving DTV 
signals over-the-air. The DTV Tuner Order did not require television 
receivers that cannot receive over-the-air digital broadcast signals to 
carry a label informing consumers of this limitation, but the 
Commission committed to monitoring the marketplace and taking steps if 
necessary to protect consumers' interests.
    8. In 2005, the Commission revised the timing and scope of the DTV 
tuner phase-in to ensure that all television receivers, including 
televisions with screens smaller than 13 inches and television 
reception devices such as VCRs, that are manufactured in the United 
States or shipped in interstate commerce after March 1, 2007, have the 
capability to tune and decode digital signals as broadcast over-the-
air. The Commission found that consumer awareness of whether television 
equipment can receive over-the-air DTV signals or only over-the-air 
analog signals is critical to ensuring that consumer expectations are 
met. The Commission was hopeful that manufacturers and retailers would 
educate consumers about the digital transition by providing point-of-
sale and other marketing information to consumers or clearly label new 
television equipment. We also note that in the past, the Commission has 
expressed concern about adequate disclosures in the analogous Plug-and-
Play Order, which concluded that the public understanding of ``cable 
ready'' in the analog context includes the capability to receive 
signals over-the-air as well as from a cable system. The Plug-and-Play 
Order implemented a voluntary labeling regime jointly proposed by the 
consumer electronics (``CE'') and cable industries to provide consumers 
with information pertaining to ``digital cable ready'' equipment.

III. Discussion

Labeling is Needed for Analog-Only Televisions

    9. The NPRM solicited comment on proposals for requiring disclosure 
of information to consumers concerning analog and digital television 
equipment. We conclude that it is necessary for us to require 
disclosure of the limitations of analog-only television receiving 
equipment at the point of sale. By ``point of sale'' we mean the place 
where televisions are displayed for consumers prior to purchase. The 
required label language should be prominently displayed in a manner 
that is clearly visible to the consumer and associated with the analog-
only television model(s) to which it pertains. Therefore, we are 
adopting a rule to alert consumers that after February 17, 2009, 
analog-only television equipment will not be able to receive over-the-
air television signals unless it is connected to a digital-to-analog 
converter or a digital subscription service. This will ensure that 
consumers have the necessary information at the point of purchase to 
decide if they wish to buy a television that has only an analog tuner. 
We also conclude that it is not necessary for us to mandate labeling 
for digital television equipment at this time in light of recent 
voluntary actions and the increasing availability of information about 
DTV features and terminology. For example, CEA and several members of 
CERC co-sponsored a consumer ``tip sheet,'' ``Buying a Digital 
Television'' with the Commission. This tip sheet is available on 
several Web sites and has been distributed at consumer events and 
industry conventions.
    10. In contrast to the information available concerning digital 
televisions, the record evidence indicates that the consumer 
electronics industry efforts do not adequately inform consumers how 
analog-only television equipment purchased now will function when the 
transition ends. CEA submitted an ex parte filing in October 2006, 
listing the steps it or its members have taken to improve consumer 
awareness of the transition in general and to provide information 
related to the purchase of television equipment in particular. The 
letter describes the efforts of CEA and its manufacturing and retail 
members to provide comprehensive information about the digital 
transition via the Internet. The letter also describes a voluntary 
labeling program announced in March 2006, intended to begin in July 
2006. Unfortunately, it appears that neither manufacturers nor 
retailers have implemented this voluntary program on a widespread 
basis.
    11. Therefore, we remain concerned that the continued sale of 
analog-only television equipment without appropriate disclosure is 
likely to mislead consumers who are unaware of the upcoming transition. 
Such consumer confusion is inconsistent with a smooth transition to 
digital broadcasting. Further, we do not believe we can rely solely on 
consumer assistance voluntarily given at the retail outlet to address 
such confusion. There have been reports that retail sales clerks are 
often confused or unaware of the limitations of analog-only 
televisions. In addition, many consumers will want to shop for 
television equipment at discount stores or online, where sales help is 
less likely to be available to explain analog-only limitations. Thus, 
confused consumers are often unable to obtain reliable and accurate 
information about the basic capabilities of television equipment at the 
point of sale.
    12. The government has a strong interest in ensuring a timely 
conclusion of the digital transition, reducing consumer disruption and 
confusion, and limiting the number of consumers who are left without 
over-the-air television service on some or all of their television 
equipment when the analog broadcast service ends in less than two 
years. Accurate communication of this impending change is a highly 
material disclosure for consumers contemplating the purchase of a 
television. It is also a matter of public safety for consumers who rely 
on analog-only televisions to obtain critical information in an 
emergency. Analog-only televisions are currently sold as part of 
emergency equipment to provide information in a disaster without 
disclosure that in two years, they will not be able to receive 
television broadcasts. After the transition, absent a label 
requirement, even cable and satellite subscribers might be surprised to 
find that they cannot receive television broadcasts over-the-air on an 
analog-only television purchased today if they choose to discontinue 
subscription service or their cable or satellite service is terminated 
by a disaster, service disruption or for non-payment of their bills.
    13. Although the DTV Tuner requirement prohibits manufacture, 
import or interstate shipment of analog-only television equipment after 
March 1, 2007, it does not extend to retail sales of analog-only 
television equipment from inventory. Thus, the passing of this date 
does not eliminate the need for disclosure by retailers who choose to 
continue to sell analog-only television equipment after March 1, 2007. 
In fact,

[[Page 26557]]

we are concerned that there is a greater likelihood of confusion if 
consumers assume that all televisions must have a digital tuner after 
this date. Without point of sale disclosure, consumers may 
inadvertently buy analog-only television equipment without 
understanding that such devices will require some additional equipment 
for use after analog broadcasting ends. We also believe that the 
presence of a label or sign concerning the sale of analog-only 
television equipment will serve an educational function by informing 
and reminding consumers of the upcoming transition from analog to 
digital broadcasting.
    14. We had been reluctant to require specific labeling in the 
expectation that manufacturers and retailers would develop clear and 
uniform terminology to convey to consumers prior to purchase the 
features as well as the limitations of television products. However, we 
now conclude that adequate pre-sale information concerning analog-only 
television equipment will not be provided voluntarily, and the 
establishment of a date certainly raises the stakes for this continuing 
failure to disclose. We also recognize that it is currently illegal for 
any manufacturer to make, import or ship an analog-only television set 
or other video device with only an analog receiver. The focus now 
shifts to retailers that are selling such analog-only equipment from 
pre-March 1, 2007 inventory. We, therefore, require that anyone that 
sells or offers for sale or rent television receiving equipment that 
does not contain a DTV tuner after March 1, 2007 must display the 
following consumer alert, in a size of type large enough to be clear, 
conspicuous and readily legible, consistent with the dimensions of the 
equipment and the label, at the point of sale. This consumer alert 
either must be printed on a transparent material and affixed to the 
screen, in a manner that is removable by the consumer and does not 
obscure the picture when displayed for sale, or displayed separately 
immediately adjacent to each television offered for sale and clearly 
associated with the analog-only television model to which it pertains. 
In the case of other analog-only video devices that do not include a 
display (e.g., a VCR), the consumer alert must be in a prominent 
location on the device, such as on the top or front, or displayed 
separately immediately adjacent to and clearly associated with the 
analog-only model to which it pertains. In addition, to the extent that 
any persons display or offer for sale or rent via direct mail, catalog, 
or electronic means (e.g., the Internet) analog-only television 
receiving equipment after March 1, 2007, they must prominently display 
as part of all advertisements or descriptions of such television 
receiving equipment, in clear and conspicuous print, and in close 
proximity to any images or descriptions of such equipment, the 
following text.

Consumer Alert

    This television receiver has only an analog broadcast tuner and 
will require a converter box after February 17, 2009, to receive over-
the-air broadcasts with an antenna because of the Nation's transition 
to digital broadcasting. Analog-only TVs should continue to work as 
before with cable and satellite TV services, gaming consoles, VCRs, DVD 
players, and similar products. For more information, call the Federal 
Communications Commission at 1-888-225-5322 (TTY: 1-888-835-5322) or 
visit the Commission's digital television Web site at: www.dtv.gov.

Authority To Require Labeling

    15. We conclude that we have ancillary authority to adopt point of 
sale disclosure requirements for analog-only television equipment under 
Titles I and III of the Communications Act of 1934, as amended 
(``Act''). Courts have long recognized that, even in the absence of 
explicit statutory authority, the Commission has authority to 
promulgate regulations to effectuate the goals and provisions of the 
Act if the regulations are ``reasonably ancillary to the effective 
performance of the Commission's various responsibilities'' under the 
Act. The Supreme Court has established a two-part ancillary 
jurisdiction test: (1) The subject of the regulation must be covered by 
the Commission's general grant of jurisdiction under Title I of the 
Communications Act; and (2) the regulation must be reasonably ancillary 
to the Commission's statutory responsibilities. The requirements we 
adopt here regulate devices that fall within the Commission's Title I 
jurisdiction, advance our statutory obligation to promote the 
accessibility and universality of radio communication, and serve the 
public interest. We conclude, therefore, that we have ancillary 
jurisdiction to adopt point of sale disclosure requirements in this 
proceeding.
    16. Title I authorizes the Commission to regulate devices that 
receive broadcast communications. Sections 1 and 2(a) of the Act confer 
on the Commission regulatory jurisdiction over all interstate radio and 
wire communication. Broadcasting is interstate in nature, and 
television receivers are covered by the Act's definition of ``radio 
communication,'' which includes not only the ``transmission of * * * 
writing, signs, signals, pictures, and sounds'' by aid of radio, but 
also ``all instrumentalities, facilities, apparatus, and services 
(among other things, the receipt, forwarding, and delivery of 
communications) incidental to such transmission.'' Television receivers 
are ``apparatus'' ``incidental to * * * transmission'' of television 
broadcasts and, therefore, are within the scope of our Title I subject 
matter jurisdiction.
    17. The recent decision of the U.S. Court of Appeals for the 
District of Columbia Circuit in American Library Ass'n v. FCC is not to 
the contrary. The D.C. Circuit held in that case that the Commission 
lacked jurisdiction over devices that can be used for receipt of wire 
or radio communications when those devices are not engaged in the 
process of radio or wire transmission. Thus, the D.C. Circuit held that 
the Commission lacked jurisdiction to regulate the post-transmission 
copying of program content. The requirement we adopt here, by contrast, 
does not involve post-transmission conduct. Rather, it directly 
concerns the ability (or inability) of television equipment to receive 
broadcast transmissions. As a result, the subject of the regulation is 
covered by Title I of the Act.
    18. In addition, we conclude that imposing point of sale disclosure 
requirements for analog-only television equipment is reasonably 
ancillary to our statutory obligations under the Act. The Commission 
was established to regulate interstate and foreign communications for 
the purposes of promoting the accessibility and universality of wire 
and radio communication, as well as promoting public safety through the 
use of wire and radio communication. The Commission also is statutorily 
obligated to promote the orderly transition to digital television, ``a 
critical step in the evolution of broadcast television.'' The 
Commission has carried out this mandate, among other things, through 
implementation of the All Channel Receiver Act, which authorizes it 
``to require that apparatus designed to receive television pictures 
broadcast simultaneously with sound be capable of adequately receiving 
all frequencies allocated by the Commission to television 
broadcasting.'' Further, the Commission is authorized to ``make such 
rules and regulations * * * as may be necessary in the execution of its 
functions,'' and to ``[m]ake such rules and regulations * * * not 
inconsistent

[[Page 26558]]

with law, as may be necessary to carry out the provisions of this Act * 
* *.''
    19. The rules we adopt today advance these statutory mandates and 
serve the public interest. Accurate and timely communication of the 
impending change from analog to digital transmission is a critical 
disclosure for consumers contemplating the purchase of television 
equipment. As discussed above, voluntary industry efforts to date have 
not been sufficient to ensure consumer awareness of the upcoming 
transition to digital television or of the limitations of analog-only 
televisions. Such consumer awareness is critical to our missions of 
promoting the accessibility and universality of radio communication, 
public safety, and an orderly digital transition. Without such 
disclosure, many American consumers may purchase analog-only television 
equipment without knowing that these devices will be unable to receive 
over-the-air signals in fewer than two years without the purchase of 
additional equipment, may be unprepared for the digital transition when 
it arrives, and may be unable to obtain critical information in 
emergencies after the transition. Consumer awareness also is necessary 
to fulfill the Commission's mandate under the ACRA, for analog-only 
television equipment will be incapable of receiving all television 
broadcast frequencies after the digital transition. By requiring that 
consumers be informed at the point of sale that analog-only television 
equipment will not be able to receive over-the-air signals in 2009, the 
requirement we adopt today will ensure that consumers who purchase such 
analog-only equipment are aware of the transition, are able to prepare 
for it in advance, and are not cut off from broadcast communications in 
2009.
    20. Exercising ancillary jurisdiction to adopt point of sale 
disclosure requirements for analog-only television equipment is 
consistent with prior exercises of the Commission's authority. As noted 
above, the Commission previously relied on its authority under the ACRA 
to impose a phased-in digital tuner mandate in order to promote the 
orderly transition to digital television. In addition, the Commission 
recently relied on its ancillary jurisdiction in requiring 
interconnected Voice over Internet Protocol (VoIP) service providers to 
distribute to their subscribers stickers or labels warning if E911 
service may be limited or unavailable, and to instruct subscribers to 
place them on or near the equipment used in conjunction with the 
interconnected VoIP service. The Commission also has numerous other 
labeling and disclosure requirements designed to further its statutory 
objectives and to protect consumers. In sum, therefore, we conclude 
that we have ancillary authority to adopt point of sale disclosure 
requirements for analog-only television equipment.

IV. Procedural Matters

    21. Accessibility Information. Accessible formats of this Second 
Report and Order (computer diskettes, large print, audio recording and 
Braille) are available to persons with disabilities by contacting Brian 
Millin, of the Consumer & Governmental Affairs Bureau, at (202) 418-
7426, TTY (202) 418-7365, or at bmillin@fcc.gov.
    22. Congressional Review Act. The Commission will send a copy of 
this Second Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

Final Regulatory Flexibility Analysis

    23. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rule Making 
(``NPRM''). The Commission sought written public comment on the 
proposals in the NPRM, including comment on the IRFA. This Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

Need for, and Objectives of, the Second Report and Order

    24. The rule adopted in this Second Report and Order is required to 
ensure a smooth transition of the nation's television system from 
analog to digital format. In an earlier proceeding in MM Docket No. 87-
268, the Commission stated its intention to hold periodic reviews of 
the progress of the digital conversion and to make any adjustments 
necessary to our rules and policies to ensure that the introduction of 
digital television broadcasting, the end of analog broadcasting, and 
the recovery of spectrum at the end of the analog-to-digital transition 
would fully serve the public interest.
    25. This Second Report and Order focuses on whether labeling on 
digital television equipment is needed at the point of sale to provide 
consumers with information they need. The Commission rejects proposals 
to require that digital television equipment bear labels concerning 
performance standards or antenna capabilities and limitations. We 
require that consumers be informed that analog television sets will, 
after analog broadcasting ends, require additional equipment (such as a 
digital-to-analog converter) if they are to continue to receive 
television service. Accordingly, we require that retailers post a label 
or sign prior to purchase to inform consumers that analog television 
receivers will need additional equipment or attachment to a 
subscription service to continue to receive over-the-air television 
after analog broadcasting ends.

Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA

    26. One comment was received on the IRFA. That comment did not 
concern any subject addressed in this Second Report and Order. The 
comment was discussed in the Final Regulatory Flexibility Analysis 
(``FRFA'') issued as part of the Commission's Report and Order (``First 
Report and Order'') in this proceeding (FCC 04-192, released September 
7, 2004) and was discussed in paragraphs 12-13 of the Final Regulatory 
Flexibility Analysis (``FRFA'') issued as part of the First Report and 
Order.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply

    27. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the proposed rules. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small government entity.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. A small 
business concern is one which: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(``SBA'').
    28. The only entities directly affected by the decisions made and 
rules adopted in this Second Report and Order are retailers and other 
sellers of television equipment, and electronics equipment 
manufacturers.
    29. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and

[[Page 26559]]

receiving antennas, cable television equipment, GPS equipment, pagers, 
cellular phones, mobile communications equipment, and radio and 
television studio and broadcasting equipment.'' The SBA has developed a 
small business size standard for Radio and Television Broadcasting and 
Wireless Communications Equipment Manufacturing, which is: all such 
firms having 750 or fewer employees. According to Census Bureau data 
for 2002, there were a total of 1,041 establishments in this category 
that operated for the entire year. Of this total, 1,010 had employment 
of under 500, and an additional 13 had employment of 500 to 999. Thus, 
under this size standard, the majority of firms can be considered 
small.
    30. Radio, Television, and Other Electronics Stores. The Census 
Bureau defines this economic census category as follows: ``This U.S. 
industry comprises: (1) Establishments known as consumer electronics 
stores primarily engaged in retailing a general line of new consumer-
type electronic products; (2) establishments specializing in retailing 
a single line of consumer-type electronic products (except computers); 
or (3) establishments primarily engaged in retailing these new 
electronic products in combination with repair services.'' The SBA has 
developed a small business size standard for Radio, Television, and 
Other Electronics Stores, which is: all such firms having $8 million or 
less in annual receipts. According to Census Bureau data for 2002, 
there were 10,380 firms in this category that operated for the entire 
year. Of this total, 10,080 firms had annual sales of under $5 million, 
and 177 firms had sales of $5 million or more but less than $10 
million. Thus, the majority of firms in this category can be considered 
small.
    31. Electronic Shopping. According to the Census Bureau, this 
economic census category ``comprises establishments engaged in 
retailing all types of merchandise using the Internet.'' The SBA has 
developed a small business size standard for Electronic Shopping, which 
is: all such entities having $23 million or less in annual receipts. 
According to Census Bureau data for 2002, there were 4,959 firms in 
this category that operated for the entire year. Of this total, 4,742 
firms had annual sales of under $10 million, and an additional 133 had 
sales of $10 million to $24,999,999. Thus, the majority of firms in 
this category can be considered small.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    32. The Second Report and Order requires anyone who sells or offers 
for sale television receiving equipment that has an analog tuner but 
not a digital tuner to disclose at the point of sale that the 
television will not receive over-the-air television broadcast signals 
after February 17, 2009 unless it is attached to a digital-to-analog 
converter box or a cable or satellite subscription service receiver.

Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    33. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    34. The final decision made in the Second Report and Order is to 
require retailers to place a label or display a sign on or near analog-
only television receiving devices (television sets, VCRs, etc.) that 
discloses the limitations for such equipment in the near future. This 
requirement applies alike to large and small sellers of television 
equipment who choose to sell analog-only televisions after March 1, 
2007. Due to the phase-in of the DTV tuner requirement cited above, 
after March 1, 2007, manufacturers and distributors are prohibited from 
making, importing or shipping in interstate commerce a television set 
that has an analog tuner but not a digital tuner. This point of sale 
disclosure requirement ensures that if sellers want to sell analog-only 
television equipment from existing inventory, they must be sure 
consumers understand the limitations that will apply when full power 
analog broadcasting ceases on February 17, 2009. The Commission also 
considered, and rejected, proposals to require many more disclosures 
with respect to digital television equipment. The Commission rejected 
these proposals because, in its opinion, adequate information is being 
made available to consumers from their own activities, industry 
efforts, disclosures encouraged by the Commission, and actions by 
consumer protection authorities.
    35. In conclusion, whatever burdens small entities may incur in 
complying with the decision made in the Second Report and Order are 
mitigated by the factors discussed in the foregoing paragraphs. They 
are also warranted by the overall benefit to the public from 
accomplishing the transition from analog to digital television and 
reducing the consumer disruption related thereto. These benefits 
include better television; job creation; economic growth; stimulation 
of new technology in this country; and the shift of spectrum from 
television broadcasting to other uses such as new wireless services and 
public safety and homeland security applications.

Report to Congress

    36. The Commission will send a copy of the Second Report and Order, 
including this FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act. In addition, the Commission will send a copy of the Second Report 
and Order, including this FRFA, to the Chief Counsel for Advocacy of 
the SBA. A copy of the Second Report and Order and FRFA (or summaries 
thereof) will also be published in the Federal Register.

V. Ordering Clauses

    37. It is ordered that, pursuant to the authority contained in 
Sections 1, 2(a), 3(33), 4(i), 303(r) and (s), and 336 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 153(33), 
154(i), 303(r) and (s), and 336, this Second Report and Order Is 
Adopted and the Commission's rules Are Hereby Amended as set forth in 
Appendix B. Rule section 47 CFR 15.117(k) contains information 
collection requirements subject to the PRA and is not effective until 
approved by the Office of Management and Budget. The Commission shall 
publish an announcement of OMB approval in the Federal Register. We 
find good cause for the rule to be effective by this date because the 
Order is necessary to minimize harm to consumers. As described in this 
Order, the Commission has found that retailers are continuing to sell 
analog-only television receivers without disclosure of the limitations 
of this equipment after the digital television transition on February 
17, 2009. Consumers buying these television receivers may not realize 
until after the end of the transition that they will no longer receive 
over-the-air signals without attachment to a

[[Page 26560]]

converter or subscription service, may be unprepared for the digital 
transition when it arrives, and may be unable to obtain critical 
information in emergencies after the transition. In such instances, 
consumers would be financially harmed and deprived of service at a 
critical time. We are concerned that delay in the effective date of the 
disclosure requirement will result in additional analog-only equipment 
being sold to uninformed consumers due to the absence of appropriate 
disclosure, thereby harming consumers and undermining the goal of the 
rule. Parties subject to the rule will have a reasonable opportunity to 
comply with it, particularly in light of the fact that it will not be 
effective until OMB approval. Because delay can result in such harms to 
consumers and because affected parties will be afforded a reasonable 
opportunity to comply with the rule, we find that there is good cause 
to expedite the effective date of this rule. We are also requesting 
emergency PRA approval from OMB.
    38. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    39. It is further ordered that the Commission shall send a copy of 
this Second Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 15

    Radio frequency devices.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the FCC amends 47 CFR part 
15 as follows:

PART 15--RADIO FREQUENCY DEVICES

0
1. The authority citation for part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302, 303, 304, 307, 336, and 544A.


0
2. Section 15.117 is amended by adding paragraph (k) to read as 
follows:


Sec.  15.117  TV broadcast receivers.

* * * * *
    (k) The following requirements apply to all responsible parties, as 
defined in Sec.  2.909 of this chapter, and any person that displays or 
offers for sale or rent television receiving equipment that is not 
capable of receiving, decoding and tuning digital signals.
    (1) Such parties and persons shall place conspicuously and in close 
proximity to such television broadcast receivers a sign containing, in 
clear and conspicuous print, the Consumer Alert disclosure text 
required by paragraph (k)(3) of this section. The text should be in a 
size of type large enough to be clear, conspicuous and readily legible, 
consistent with the dimensions of the equipment and the label. The 
information may be printed on a transparent material and affixed to the 
screen, if the receiver includes a display, in a manner that is 
removable by the consumer and does not obscure the picture, or, if the 
receiver does not include a display, in a prominent location on the 
device, such as on the top or front of the device, when displayed for 
sale, or the information in this format may be displayed separately 
immediately adjacent to each television broadcast receiver offered for 
sale and clearly associated with the analog-only model to which it 
pertains.
    (2) If such parties and persons display or offer for sale or rent 
such television broadcast receivers via direct mail, catalog, or 
electronic means, they shall prominently display in close proximity to 
the images or descriptions of such television broadcast receivers, in 
clear and conspicuous print, the Consumer Alert disclosure text 
required by paragraph (k)(3) of this section. The text should be in a 
size large enough to be clear, conspicuous, and readily legible, 
consistent with the dimensions of the advertisement or description.
    (3) Consumer alert. This television receiver has only an analog 
broadcast tuner and will require a converter box after February 17, 
2009, to receive over-the-air broadcasts with an antenna because of the 
Nation's transition to digital broadcasting. Analog-only TVs should 
continue to work as before with cable and satellite TV services, gaming 
consoles, VCRs, DVD players, and similar products. For more 
information, call the Federal Communications Commission at 1-888-225-
5322 (TTY: 1-888-835-5322) or visit the Commission's digital television 
Web site at: https://www.dtv.gov.

[FR Doc. 07-2318 Filed 5-9-07; 8:45 am]
BILLING CODE 6712-01-P